Citation NR: 9740935
Decision Date: 12/10/97 Archive Date: 12/16/97
DOCKET NO. 95-39 264 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for bilateral shoulder
disability.
2. Entitlement to service connection for arthritis of
multiple joints.
3. Entitlement to service connection for facial rash.
4. Entitlement to an increased (compensable) evaluation for
thoracic spine disability.
5. Entitlement to an increased (compensable) evaluation for
varicose veins of the left leg.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Stephen L. Higgs
INTRODUCTION
The veteran served on active duty from September 1970 to
September 1974 and from September 1977 to February 1995.
This matter comes to the Board of Veterans’ Appeals (Board)
on appeal from rating decisions dated in July 1995 and
September 1995 by the Department of Veterans Affairs (VA)
Regional Office (RO) in St. Louis, Missouri.
The issues of entitlement to service connection for a facial
rash and arthritis of multiple joints is addressed in the
remand at the end of this action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends he acquired bilateral shoulder
disability during his period of active duty.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence supports the veteran’s claim for service connection
for bilateral shoulder disability. It is the further
decision of the Board that the veteran has not submitted a
timely substantive appeal with respect to the issues of
entitlement to increased (compensable) evaluations for
thoracic spine disability and varicose veins of the left leg.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the claim for service connection for bilateral
shoulder disability has been obtained by the RO.
2. The veteran has bilateral should disability which
originated during service.
3. The veteran’s varicose veins of the left leg and
disability of the thoracic spine were assigned noncompensable
evaluations in a rating decision of July 1995; the veteran
was informed of this decision and of his appellate rights
later in July 1995.
4. In response to his notice of disagreement with the July
1995 rating decision, the veteran was provided a statement of
the case in September 1995 addressing the increased
evaluation issues and other issues; he filed a VA Form 9 in
November 1995 in which he specifically indicated that he was
withdrawing these claims for increased evaluations.
5. Thereafter, no written communication addressing either
increased evaluation issue was received from the veteran or
his representative until January 1997.
CONCLUSIONS OF LAW
1. Bilateral shoulder disability was incurred during
service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38
C.F.R. § 3.303 (1996).
2. The veteran has not submitted a timely substantive appeal
with respect to the issue of entitlement to an increased
(compensable) evaluation for thoracic spine disability or the
issue of entitlement to an increased (compensable) evaluation
for varicose veins of the left leg. 38 U.S.C.A. § 7105 (West
1991); 38 C.F.R. § 20.200, 20.302(b) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Entitlement to service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131. For the
showing of a chronic disease in service, there is required a
combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word “chronic.”
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. 38 C.F.R. § 3.303(b).
A service medical record of treatment in October 1994 reveals
the veteran complained of bilateral shoulder strain for the
past 8 to 9 months, with burning sensation, pain and
friction. The examining physician’s assessment was rule out
osteoarthritis, with X-rays ordered. A service medical
record of treatment in November 1994 reveals that bilateral
degenerative joint disease of the shoulders was diagnosed by
X-ray. The physician’s assessment was degenerative joint
disease of the shoulders, recurrent, with accompanying back
pain stable at that time.
By contrast, the veteran’s upper extremities were noted to be
normal at his November 1994 retirement examination, although
the history of diagnosis and treatment of degenerative joint
disease of the shoulders was noted by the same physician who
conducted the examination. From the face of the documents it
would appear the history was given by the veteran on the date
of the examination, but reviewed and elaborated upon by the
physician six days after the clinical evaluation was
performed.
At an April 1995 VA examination of the joints, the veteran
complained of dull chronic pain of the shoulders. He was
diagnosed with tenosynovitis of the shoulders without
radiographic evidence of degenerative arthritis at that time.
X-rays of the shoulders taken in April 1995 were negative.
The record shows that the veteran complained of and was
diagnosed with a bilateral shoulder disability during
service. He filed a claim for service connection for
bilateral shoulder disability the month following his
discharge from service and was found to have bilateral
shoulder disability on his initial VA examination less than
two months following his discharge from service. Therefore,
the Board is satisfied that the preponderance of the evidence
supports the claim for service connection for bilateral
shoulder disability.
With respect to the veteran’s appeal for increased
evaluations, the Board notes that an appeal consists of a
timely filed notice of disagreement in writing and, after a
statement of the case has been furnished, a timely filed
substantive appeal. A substantive appeal must be filed
within 60 days from the date that the agency of original
jurisdiction mails the statement of the case to the
appellant, or within the remainder of the 1-year period from
the date of mailing of the notification of the determination
being appealed, whichever period ends later. 38 U.S.C.A.
§ 7105; 38 C.F.R. §§ 20.200, 20.302(b).
The record reflects that the veteran’s varicose veins of the
left leg and disability of the thoracic spine were assigned
noncompensable evaluations in a rating decision of July 1995;
the veteran was informed of this decision and of his
appellate rights later in July 1995. In response to his
notice of disagreement with the July 1995 rating decision,
the veteran was provided a statement of the case in September
1995 addressing the increased evaluation issues and other
issues. In November 1995, the veteran filed a VA Form 9 in
which he specifically indicated that he was withdrawing the
claims for increased evaluations. Thereafter, no written
communication addressing either increased evaluation issue
was received from the veteran or his representative until
January 1997, well after the time limit for filing a
substantive appeal. Consequently, the Board does not have
jurisdiction to decide these issues.
ORDER
Service connection for bilateral shoulder disability is
granted.
The appeal for increased (compensable) evaluations for
thoracic spine disability and varicose veins of the left leg
is dismissed.
REMAND
The veteran contends he incurred a chronic facial rash during
service. Although a facial rash was not found on an April
1995 VA examination, the veteran essentially contends that he
has continued to receive treatment for the disability and
that the condition was not evident at the VA examination
because of medication used to control the lesions. It
appears from the veteran’s contentions that additional
records pertinent to this claim are available.
The Board further notes that the service medical records
contain diagnoses of degenerative joint disease, or
arthritis, of the veteran’s hands and right big toe.
Although arthritis was not diagnosed on the April 1995 VA
examination, the examination did not include an X-ray study
of the veteran’s hands and the claims folder was not
available for the examiner to review. Moreover, it appears
from the veteran’s contentions that additional records
pertaining to this claim are also available.
In light of these circumstances, the case is REMANDED to the
RO for the following actions:
1. The veteran should be requested to
identify the names, addresses and
approximate dates of treatment for all
health care providers, Air Force, VA and
private, who may possess records
pertinent to his claims. With any
necessary authorization from the veteran,
the RO should attempt to obtain and
associate with the claims file any
medical records identified by the veteran
which have not been secured previously.
The records sought should include records
of treatment for a facial rash at the
Hurlbourt Clinic in Florida.
2. Then, the RO should arrange for VA
examinations of the veteran by
appropriate board certified specialists,
if available, to determine the nature and
etiology of any disability of joints, to
specifically include the hands and right
foot, and of the veteran’s claimed facial
rash. All indicated studies, including
X-rays and range of motion studies in
degrees for orthopedic disabilities,
should be performed.
The physicians should also express an
opinion for each currently present
disability as to whether it is at least
as likely as not that such disability is
etiologically related to the veteran’s
period of active service. Additionally,
with respect to any arthritis of the
veteran’s right foot, the examiner should
provide an opinion as to whether it is at
least as likely as not that such
disability was caused or chronically
worsened by the veteran’s service-
connected bunion of the right great toe.
Additionally, an opinion should be
provided as to whether the veteran’s
facial rash is a disease of allergic
etiology, and, if so, whether it is
seasonal or acute in nature.
The rationale for all opinions expressed
should be explained. The claims file
must be made available to the physicians
prior to their examinations of the
veteran.
3. Thereafter, the RO should review the
claims file and ensure that all
development actions, including the
medical examinations and requested
opinions, have been conducted and
completed in full. Then, the RO should
undertake any other indicated
development, and readjudicate the issues
of entitlement to service connection for
a facial rash and arthritis of multiple
joints. In adjudicating the issue of
service connection for facial rash, the
provisions of 38 C.F.R. § 3.380 should be
considered. If the benefits sought on
appeal are not granted to the veteran’s
satisfaction, the RO should issue a
supplemental statement of the case on all
issues in appellate status and afford the
veteran and his representative an
appropriate opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. By
this REMAND the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is otherwise notified by the RO.
This case must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
- 2 -